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Zhu and Chen v SSHD Presentation

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Robert Walton

on 26 March 2013

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Transcript of Zhu and Chen v SSHD Presentation

Case C-200/02 Zhu and Chen [2004] ECR I-9925, [2004] 3 C.M.L.R. 48. Kunqian Catherine Zhu (“Catherine”) was born in Belfast in September 2000 to avoid One Child Policy.
Father, Mother (Mr & Mrs Chen), and Sister are Nationals of the Peoples Republic of China.
Mr & Mrs Chen work for a Chinese chemical exporter. Mr Chen is a Director & controlling shareholder. Facts Facts Judgement Significance Jus soli
Right of citizenship or nationality conferred to people born in the territories of a state.
Ireland granted nationality to anyone born on the island of Ireland or its seas.
Ireland granted citizenship to anyone born on the island of Ireland or its seas if they are not eligible for citizenship in another country. Catherine was not entitled to citizenship in the UK as British Nationality Act 1981 ended jus soli in the UK.
Also not entitled to citizenship in China as she was born in Northern Ireland.
Only able to visit China with a visa and for 30 days per visit. Mrs Chen and Catherine move to Cardiff.
Secretary of State for the Home Department refuses to grant a permit for long-term residency as Catherine is not exercising any rights conferred by the European Community Treaty.
Case brought to Immigration Appellate Authority. Proceedings stayed pending preliminary ruling from the ECtHR. Directive 73/148/EEC
Article 1(1)(b) – Abolishes the restriction of movement and residence of Member-State nationals wishing to receive services.
Catherine was receiving child-care services. Directive 90/364/EEC (Since replaced by Directive 2004/38/EC)
Article 1(1) grants the right of residence to EU nationals who do not enjoy this right under other provisions of Community law & to members of their families, provided that they have sickness insurance and have sufficient resources to avoid becoming a burden on the member state they wish to reside in .
Article 1(2)(b) confers a right of residence to dependent relatives of the EU national.
Catherine and her mother had insurance and income.
Mrs Chen not dependent on Catherine. Vice versa. The Immigration Appellate Authority requested a preliminary ruling on whether or not Directive 73/148, or Directive 90/364, or Article 18 of the European Community Treaty can be read to allow a minor national of a Member State, who receives child-care services, the right to reside in another Member State along with his/her parent, who is a national of a non-member state.
Article 18 of the European Community Treaty (now Art. 21 of TFEU)
The right to move and reside freely within the territory of the Member States ` ‘The situation of a national of a member state who was born in the host member state and has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation, thereby depriving that national of the benefit in the host member state of the provisions of Community law on freedom of movement and of residence: to that effect, see, in particular, Garcia Avello v État Belge (Case C-148/02) [2003] ECR I-11613 , 11642, 11645, paras 13 and 27.’ (para 19) Preliminary issue 1: The Irish and United Kingdom Governments' contented that the daughter could not claim the benefit of the provisions of Community law on free movement of persons and residence because she had never moved from one member state to another member state.’ ‘a young child can take advantage of the rights of free movement and residence guaranteed by Community law. The capacity of a national of a member state to be the holder of rights guaranteed by the Treaty and by secondary law on the free movement of persons cannot be made conditional on the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally’ (para 20)

‘Moreover…it does not follow either from the terms of, or from the aims pursued by, articles 18 and 49 EC and Directives 73/148 and 90/364, that the enjoyment of the rights with which those provisions are concerned should be made conditional on the attainment of a minimum age.’ (para 20) Preliminary issue 2: The Irish Government contended that, as a young child, the daughter (Catherine) could not take advantage of the rights of free movement and residence guaranteed by Community law. Two issues:
1 - As a recipient of child-care services provided in return for payment:

‘According to the case law of the court, the provisions on freedom to provide services do not cover the situation of a national of a member state who establishes his principal residence in the territory of another member state with a view to receiving services there for an indefinite period: to that effect, see, in particular, Steymann v Staatssecretaris van Justitie (Case 196/87) [1988] ECR 6159 . The child-care services to which the national court refers fall precisely within that case.’ (para 22)

2 - ‘As regards the medical services that Catherine is receiving on a temporary basis, it must be observed that, under the first sub-paragraph of article 4(2) of Directive 73/148 , the right of residence of persons receiving *348 services by virtue of the freedom to provide services is co-terminous with the duration of the period for which they are provided. Consequently, that Directive cannot in any event serve as a basis for a right of residence of indefinite duration of the kind with which the main proceedings are concerned.’ (para 23) Main issue 1: Whether a person in Catherine's situation may rely on the provisions of Directive 73/148 with a view to residing on a long-term basis in the United Kingdom Preliminary observation:

‘As regards the right to reside in the territory of the member states provided for in article 18(1) EC , it must be observed that that right is granted directly to every citizen of the Union by a clear and precise provision of the Treaty. Purely as a national of a member state, and therefore as a citizen of the Union, Catherine is entitled to rely on article 18(1) EC.’ (para 26) Main issue 2: Whether the daughter (Catherine) could have a right to long-term residence under Article 18 EC Treaty (now A21 of the TFEU) Part 1:

That right of citizens of the Union to reside in another member state is recognised subject to the limitations and conditions imposed by the Treaty and by the measures adopted to give it effect.

Article 1(1) of Directive 90/364 provides that the member states may require that the nationals of a member state who wish to benefit from the right to reside in their territory and the members of their families be covered by sickness insurance in respect of all risks in the host member state and have sufficient resources to avoid becoming a burden on the social assistance system of the host member state during their period of residence.

‘It is clear from the order for reference that Catherine has both sickness insurance and sufficient resources, provided by her mother, for her not to become a burden on the social assistance system of the host member state.’ (para 28) Main issue 2: Whether the daughter (Catherine) could have a right to long-term residence under Article 18 EC Treaty (now A21 of the TFEU) However:

An objection was raised by the Irish and United Kingdom Governments that the condition concerning the availability of sufficient resources means that the person concerned must…possess those resources personally and may not use for that purpose those of an accompanying family member, such as Mrs Chen.

‘According to the very terms of article 1(1) of Directive 90/364, it is sufficient for the nationals of member states to "have" the necessary resources, and that provision lays down no requirement whatsoever as to their origin.’ (para 30)

‘provisions laying down a fundamental principle such as that of the free movement of persons must be interpreted broadly.’ (para 31)

‘Moreover, the limitations and conditions referred to in article 18 EC and laid down by Directive 90/364 are based on the idea that the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the member states. Thus, although, according to the fourth recital in the Preamble to Directive 90/364, beneficiaries of the right of residence must not become an "unreasonable" burden on the public finances of the host member state, the Court of Justice has nevertheless observed that those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the principle of proportionality.’ (para 32)

‘An interpretation of the condition concerning the sufficiency of resources within the meaning of Directive 90/364, in the terms suggested by the Irish and United Kingdom Governments, would add to that condition, as formulated in that Directive, a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued, namely the protection of the public finances of the member states, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and of residence upheld by article 18 EC.’ (para 33) Main issue 2: Whether the daughter (Catherine) could have a right to long-term residence under Article 18 EC Treaty (now A21 of the TFEU) ‘Moreover, the limitations and conditions referred to in article 18 EC and laid down by Directive 90/364 are based on the idea that the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the member states. Thus, although, according to the fourth recital in the Preamble to Directive 90/364, beneficiaries of the right of residence must not become an "unreasonable" burden on the public finances of the host member state, the Court of Justice has nevertheless observed that those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the principle of proportionality.’ (para 32)

‘An interpretation of the condition concerning the sufficiency of resources within the meaning of Directive 90/364, in the terms suggested by the Irish and United Kingdom Governments, would add to that condition, as formulated in that Directive, a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued, namely the protection of the public finances of the member states, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and of residence upheld by article 18 EC.’ (para 33) Main issue 2: Whether the daughter (Catherine) could have a right to long-term residence under Article 18 EC Treaty (now A21 of the TFEU) Part 2

The United Kingdom Government contended that the applicants are not entitled to rely on the Community provisions in question because Mrs Chen's move to Northern Ireland with the aim of having her child acquire the nationality of another member state constitutes an attempt improperly to exploit the provisions of Community law.

‘under international law, it is for each member state, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality…none of the parties that submitted observations to the court has questioned either the legality, or the fact, of Catherine's acquisition of Irish nationality.’ (para 38)

‘Moreover, it is not permissible for a member state to restrict the effects of the grant of the nationality of another member state by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty: see, in particular, Micheletti , para 10, and Garcia Avello v État Belge (Case C-148/02) [2003] ECR I-11613 , 11645-11646, para 28.’ (para 39) Main issue 2: Whether the daughter (Catherine) could have a right to long-term residence under Article 18 EC Treaty (now A21 of the TFEU) Conclusion:

‘Accordingly, in circumstances like those of the main proceedings, article 18 EC and Directive 90/364 confer on a young minor who is a national of a member state, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host member state, a right to reside for an indefinite period in that state.’ (para 41) Main issue 2: Whether the daughter (Catherine) could have a right to long-term residence under Article 18 EC Treaty (now A21 of the TFEU)

‘On the other hand, a refusal to allow the parent, whether a national of a member state or a national of a non-member country, who is the carer of a child to whom article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host member state, would deprive the child's right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host member state for the duration of such residence.’ (para 45) Main issue 3: Can the mother reside in the UK? The carer can be entitled to rights of residence through the child despite the fact they are not family members.
Significant in adding a new dimension to what was a strictly family-orientated Article 1.
“Chen decided that the emotional bonds between a mother and a young child were not sufficient to make the mother dependent on the child” - Desmond Rutledge
The category of primary carer is highlighted by the introduction of provisions in the Immigration Rules para 257. The Legal position of the Carer How long is the term of residence?
Baumbast - Dependents right of residence continues as long as the child is of school age.
Carer will have been in the state for a number of years... Likely to have assimilated and made a home in the host state.
Deporting the carer may have Human Rights implications.
There is debate as to whether or not after an extended time carers should have a parallel right to acquire permanent resident status. The Legal position of the Carer A rare issue: If the carer cannot prove that the child is an EU citizen, but that it has a plausible claim, how should that situation be dealt with?
The member-state should grant the carer and child a reasonable period of time to contact the father.
By not allowing the carer time to contact the father, the member-state runs the risk of deporting an EU citizen.
Not granting time and deporting a possible EU citizen would be contrary to the spirit of the judgements in Chen and Baumbast. The Legal position of the Carer Zhu and Chen had a direct effect on domestic legislation, causing the introduction of provisions within the Immigration Rules para 257.
The effect of paragraph 257 is to restrict the ruling of the ECJ in Chen to those who are self-sufficient. A number of cases have arisen in relation to the issue of the meaning of self-sufficiency, particularly as the Home Office has construed that these resources must be obtained ‘without taking employment’.
Directive 2004/38 does not prevent non-EU family members from working.
Express right to work is guaranteed in Art. 23.
Overall aim of community law is to abolish restrictions on economic activity.
Appears that the Home Office is excluding this class of case... the 2006 Regulations are acting incompatibly with Directive 2004/38. Requirement for self sufficiency Commission of the European Communities v Belgium (C-408/03
Case based upon complaints that the Commission had received stating that the Belgian authorities were not correctly applying Community law under Council Directive 90/364 Article 1(1)
This article used to determine if a citizen is indeed a burden upon the state.
The Belgian authorities interpreted that condition as requiring the citizen to have such resources personally, which amounted to disproportionate interference with the citizen's fundamental rights under Art.18 of the Treaty. Cases affected by Zhu and Chen Zhu and Chen applied in Minister voor Vreemdelingenzaken en Integratie v Eind (C-291/05) to support how The EC Treaty art.18 (Now Article 21 TFEU) recognised the right of every citizen of the Union to reside in the territories of the Member States.
Zhu and Chen was applied in the case T v M-T [2005] EWHC 79 (Fam) to support the almost identical facts of a Nigerian mother who was allowed to reside in England after giving birth to twins in Ireland. Cases affected by Zhu and Chen Significant effect on domestic Irish legislation:
Twenty-Seventh Amendment of the Constitution of Ireland provided that children born in Ireland to parents who are both non-nationals would no longer have a right to citizenship in the Republic of Ireland.
Came into law as a preventative measure against ‘Birth tourism’. Legislative Significance of Zhu and Chen Bjorn Kunoy argues that Chen’s legal claim betrays the spirit and scope of the rights conferred in the EC Treaty – abusing EU law to achieve residence in the United Kingdom
“One cannot help but feel that Mrs Chen is betraying the spirit in which she obtained her residence permit as a third-country citizen in the UK, as she is circumventing the applicable UK rules”
Jean-Yves Carlier highlights how this artificial movement to gain national residence caused a tension between “The governments of Ireland and of the United Kingdom (who) wanted this artifice to be condemned. The Court did not agree.” Further Commentary Income support: right to reside – whether any conflict in EC case law on dependency, Desmond Rutledge, Journal of Social Security Law [2008]
The Chen Cases, Maria Fernandes, Journal of Immigration Asylum and Nationality Law [2007]
A union of national citizens: the origins of the Court's lack of avant-gardisme in the Chen case, Bjorn Kunoy, Common Market Law Review [2006]
Case C-200/02, Kunqian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home Department, Jean-Yves Carlier, Common Market Law Review [2005] Journals used Alex McCarthy, Robert Walton and Callum Godbold Thank you for listening!
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